[00:00:00] Speaker 01: Case number 20-5288, John R. Adams, the Honorable, Appellant, versus Judicial Counsel of the Sixth Circuit and Committee on Judicial Conduct and Disability of the Judicial Conference of the United States. [00:00:13] Speaker 01: Mr. Orfanides for the Appellant, Mr. Soder for the Appellate. [00:00:18] Speaker 03: Good morning, counsel. [00:00:19] Speaker 03: Before we begin today, I just want to note that today is Judge Jackson's first argument sitting as a new member of this court. [00:00:25] Speaker 03: And on behalf of the court, I want to extend to her a very warm welcome as she joins us in pursuit of our common calling. [00:00:33] Speaker 02: Thank you very much. [00:00:34] Speaker 02: I'm honored to be here. [00:00:36] Speaker 03: Mr. Orfanidis, please proceed when you're ready. [00:00:39] Speaker 05: Yes, thank you very much. [00:00:41] Speaker 05: Paul Orfanides on behalf of Judge John R. Adams. [00:00:44] Speaker 05: First of all, I would like to thank the court for its time and efforts on Judge Adams' behalf. [00:00:49] Speaker 05: He has sat by designation as a member of the Sixth Circuit, so he knows what goes into an appeal, and I know he appreciates your efforts very much. [00:00:56] Speaker 05: I'd like to begin by talking about the misconduct finding, because I think that most clearly demonstrates that this case is not moot. [00:01:06] Speaker 05: There are two very much interrelated components of what we are claiming is direct government action that injured Judge Adams. [00:01:16] Speaker 05: And makes the case not move the misconduct finding it's the misconduct finding that he committed conduct prejudicial to the to the, you know, expeditious and administration of the courts. [00:01:32] Speaker 05: addresses that I mean that is exactly the reason why the court and McBride found that case that judge McBride case was not moved because there was a determination that he too had committed conduct prejudicial to the effective and expeditious administration business of the courts. [00:01:52] Speaker 05: This really is no different. [00:01:56] Speaker 05: In fact, we think this is probably more egregious because the misconduct finding here as interrelated with the psychiatric examination order went to the core of Judge Adams' ability to serve his mental competence. [00:02:11] Speaker 05: He's been on the bench for 18 years. [00:02:14] Speaker 05: the only judge in the 232-year history of the federal judiciary to have been found guilty of misconduct for declining, for objecting in good faith to undergoing the psychiatric examination. [00:02:29] Speaker 05: Only the second judge to our knowledge who has ever been publicly ordered to undergo such an examination. [00:02:37] Speaker 03: Can I ask you a question about the misconduct part of it and how you're conceptualizing the relationship between [00:02:43] Speaker 03: you're terming the misconduct part and the examination part? [00:02:46] Speaker 03: Yes, sure. [00:02:48] Speaker 03: One possible, one arguable distinction between this case and McBride is that in this case, the misconduct is a direct byproduct of the examination because the misconduct is [00:03:06] Speaker 03: disagree, is declining to show up for the, to submit to the examination. [00:03:10] Speaker 03: Whereas in McBride, you didn't have that kind of relationship between the two aspects of it, the two and one year time periods and the misconduct. [00:03:20] Speaker 03: And so one, I just want to get your reaction to that potential distinction between the two and [00:03:27] Speaker 03: why you think that doesn't mean that this case could turn out differently on the misconduct part of it, given that here, if we assume, and I know you'd reject this assumption, but let's just assume it for purposes of argument, that the examination part of it was rendered moot by the council's determination that that requirement would no longer be in effect. [00:03:46] Speaker 03: And then you have a misconduct, which you're arguing is distinct, but the misconduct is entirely bound up with and a byproduct of the examination part of it that's now no longer in effect. [00:04:01] Speaker 05: Um, I think really there's three steps first there was the demand by the special committee that he undergo the, the psychiatric examination and what he did not that was when when he objected. [00:04:13] Speaker 05: That was when that was what ended up with the misconduct finding now. [00:04:19] Speaker 05: One can almost look at as a remedy or as a sanction for the misconduct finding he was then ordered by the Judicial Council affirmed by the review committee to undergo the psychiatric examination, so there are three components of it. [00:04:31] Speaker 05: But you know I don't see that as any different between the misconduct finding in McBride and the sanction in McBride which [00:04:39] Speaker 05: was the suspensions. [00:04:41] Speaker 05: The suspensions there had obviously lapsed, but there wasn't the same interconnectedness between the misconduct finding and, for lack of a better word, the penalty in McBride. [00:04:53] Speaker 05: I think all of the court's cases that deal with direct government action [00:04:58] Speaker 05: This is probably the most, I would say this is the most egregious, the most harmful to a judge's reputation. [00:05:04] Speaker 05: I mean, we have the, I think the first case was probably Sullivan. [00:05:07] Speaker 05: That was the attorney that the district court, this district court's bar committee had determined committed misconduct. [00:05:16] Speaker 02: Council, can I just ask you about that assertion that this is so harmful to the reputation? [00:05:21] Speaker 02: I mean, isn't this just a recognition [00:05:24] Speaker 02: that Judge Adams refused to submit to the examination. [00:05:29] Speaker 02: What reputational harm is there when he freely admits that? [00:05:34] Speaker 05: It was a finding of misconduct. [00:05:36] Speaker 05: I mean, it was not just an acknowledgment that he declined to go. [00:05:41] Speaker 05: They found he committed misconduct, prejudicially effective at an expeditious administration in the business of the courts. [00:05:48] Speaker 02: I guess I didn't really understand your answer to Chief Judge Srinivasan's question about the fact that that finding misconduct concerned the examination order, which they now say he no longer has to do. [00:06:05] Speaker 02: So why isn't their withdrawal of the examination order sufficient to terminate any reputational harm that flowed from his refusal to do it? [00:06:18] Speaker 05: Because just like in McBride, Judge Adams was found to have committed misconduct. [00:06:23] Speaker 05: There's been no revocation, no withdrawal of the misconduct finding. [00:06:27] Speaker 05: So, I mean, I think of it as misconduct and sanction in both McBride and Adams. [00:06:34] Speaker 05: In Judge McBride's case, the sanction was suspensions. [00:06:39] Speaker 05: When those expired, the court said that component of the challenge of Judge McBride's legal challenge is moot. [00:06:49] Speaker 05: But because he was found to have committed misconduct, that makes the case not moot. [00:06:55] Speaker 05: So conceptually, we're splitting the two up. [00:07:00] Speaker 05: between the misconduct finding and then the examination order. [00:07:04] Speaker 05: The misconduct finding exists. [00:07:06] Speaker 05: It's still out there on the court's websites. [00:07:09] Speaker 05: You know, it's documented part of history. [00:07:13] Speaker 02: Again, in response to sort of Chief Judge Trina Boston's framing of this, you're suggesting that it doesn't matter that in McBride, the suspension and the misconduct were two separate [00:07:31] Speaker 02: that they stemmed from two separate sets of facts. [00:07:34] Speaker 02: So a parallel scenario would be the bride person is suspended and then he refuses to comply with the conditions of that suspension. [00:07:47] Speaker 02: And so they find him to be in contempt or that he's committed misconduct. [00:07:53] Speaker 02: That seems to me to be more parallel to what we have here. [00:07:57] Speaker 02: And that therefore they're intertwined in a way [00:08:00] Speaker 02: that really wasn't the case in McBride, and you say it doesn't matter. [00:08:04] Speaker 05: I say it doesn't matter, and I would look to the Sullivan case. [00:08:08] Speaker 05: This was the attorney misconduct place where the district court's bar found an attorney had committed misconduct. [00:08:15] Speaker 05: He appealed that. [00:08:17] Speaker 05: The bar committee then said, well, there's no injury because there was no sanction. [00:08:22] Speaker 05: This court said he still suffered an injury because he was found to have committed misconduct. [00:08:29] Speaker 05: Some of the other cases that we've cited, Fordage for example, Meath versus Keene. [00:08:34] Speaker 03: I think it seems very persuasive to say that a finding of misconduct that's untethered to something else causes an injury. [00:08:41] Speaker 03: That seems right. [00:08:43] Speaker 03: I guess what seems a little more complicated about this case is the finding of misconduct is tethered to something that by hypothesis has been ended. [00:08:52] Speaker 03: that is no longer in effect. [00:08:54] Speaker 03: And that wasn't true in Sullivan and it wasn't true in McBride. [00:08:57] Speaker 03: I'm not necessarily saying that that's a distinction with a difference, but it seems to me that it's at least a distinction that needs to be examined because the underlying matter that gave rise to the misconduct finding here [00:09:13] Speaker 03: hypothesis is gone. [00:09:15] Speaker 03: Now, I know your argument is that you haven't abandoned the examination part of it either. [00:09:22] Speaker 03: And so in some sense, you're saying that that remains an issue too. [00:09:28] Speaker 03: But that suggests that they stand or fall together. [00:09:30] Speaker 03: And I guess the question is, if we disagree with you on the examination part and think the examination part falls, [00:09:36] Speaker 03: then does the notion that they stand or fall together mean that the misconduct part of it falls too? [00:09:41] Speaker 03: Or is there a way to disaggregate them for these purposes, even though the misconduct finding was entirely predicated on the examination requirement because the misconduct was the failure to abide by the examination requirement? [00:09:58] Speaker 05: Well, I think this gets back to the [00:10:01] Speaker 05: We see three steps, right? [00:10:03] Speaker 05: The original requirement to undergo the examination order, the objection, that was found to be misconduct, the objection. [00:10:11] Speaker 05: And then there was the examination order. [00:10:13] Speaker 05: Now, the examination order has been withdrawn. [00:10:16] Speaker 05: Well, actually, it hasn't been withdrawn. [00:10:19] Speaker 05: It said was no longer in effect. [00:10:22] Speaker 05: What that means is anyone's guess. [00:10:26] Speaker 05: But the misconduct finding was never withdrawn. [00:10:28] Speaker 05: We still have a judge who, you know, 18 years on the bench, you know, a well-respected member of the federal judiciary who has been found to have committed misconduct. [00:10:38] Speaker 05: And that is very harmful to his reputation. [00:10:41] Speaker 05: And I think, I don't see how the facts that the penalty, I don't see how the penalty can be separated or, [00:10:55] Speaker 05: for purposes of McBride can't not be separated from the underlying misconduct finding. [00:11:02] Speaker 05: That was exactly the case in McBride. [00:11:04] Speaker 05: The court found the misconduct finding was existent. [00:11:08] Speaker 05: It was still out there. [00:11:09] Speaker 05: It was still injurious to his reputation. [00:11:12] Speaker 05: I think the court actually looked at it from the other perspective, saying, well, what could we do to remedy the suspensions that would be different from remedying the misconduct order? [00:11:22] Speaker 05: And I think it said that it was just an incremental injury. [00:11:26] Speaker 05: The underlying injury was still the misconduct finding. [00:11:29] Speaker 05: And that's the case here. [00:11:31] Speaker 05: What we're saying that makes this case not moot is the underlying injury of the misconduct finding that harms his reputation. [00:11:39] Speaker 02: Can I just ask? [00:11:40] Speaker 02: I know the time is elapsed. [00:11:43] Speaker 02: Is there any way to challenge the misconduct finding without litigating the legality of the examination order? [00:11:54] Speaker 02: If you continue, is that what the rest of this case looks like? [00:12:00] Speaker 05: The rest of this case looks like constitutional and statutory challenges to the authority of the judicial council to order a psychiatric examination. [00:12:13] Speaker 05: I don't know, I mean, that's what, those were the claims that we had sought to bring. [00:12:18] Speaker 05: They were four counts in our proposed amendment complaint. [00:12:23] Speaker 04: All right. [00:12:24] Speaker 04: What was your evidence of a tangible harm to reputation? [00:12:29] Speaker 05: Well, two responses. [00:12:31] Speaker 05: First of all, our reading of the law, the court, separates two into two types of injury. [00:12:38] Speaker 05: One is injury from direct governmental action. [00:12:41] Speaker 05: The other is injury from secondary effects. [00:12:45] Speaker 05: Direct governmental action does not require anything more. [00:12:48] Speaker 05: That's that in our instance that's the misconduct finding secondary effects require some sort of concrete tangible effects. [00:12:55] Speaker 05: In this instance we have actually had instances, Judge Adams was subject to a judicial complaint by one of the parties that appeared before him. [00:13:02] Speaker 05: that challenged his competence, his, his, his fitness to serve. [00:13:07] Speaker 05: I mean, that's exactly the type of reputational injury. [00:13:10] Speaker 05: I mean, it's concrete. [00:13:11] Speaker 05: It's real. [00:13:12] Speaker 05: It was filed. [00:13:13] Speaker 04: You know, we can trace that back to the misconduct finding. [00:13:18] Speaker 05: Well, absolutely. [00:13:19] Speaker 05: I mean, the misconduct finding was based on his good faith objection to undergoing the psychiatric examination. [00:13:27] Speaker 04: Right, so that is not the basis from which people objected to his sitting. [00:13:32] Speaker 04: Is it that he failed to respond to this request for an evaluation? [00:13:38] Speaker 05: Again, I think in this particular case, unlike in McBride, the two components are so intertwined that it's difficult to separate them out. [00:13:49] Speaker 05: I don't think that makes the misconduct finding not moot, but I do think it demonstrates that [00:13:56] Speaker 05: something like the judicial complaint is a concrete, tangible secondary effect, if the court needs to even get to that secondary effect analysis. [00:14:08] Speaker 05: We don't think it needs to, because we think there's direct government action that has caused the injury. [00:14:13] Speaker 03: Can I just get one point of clarification following up on the question that Judge Jasso just asked you? [00:14:17] Speaker 03: So they're intertwined, as you are suggesting, and is there any argument that you're making in challenging [00:14:25] Speaker 03: the misconduct finding that's different from an argument that you make that challenges the examination requirement. [00:14:33] Speaker 03: In other words, is there any basis on which if this were to go forward, a court could conclude that you win in challenging the misconduct determination, but the necessary result of that is not that you would also win in challenging the examination requirement. [00:14:51] Speaker 03: or are the challenges to those two kind of intertwined in the way that you think? [00:14:56] Speaker 05: I think they're intertwined, Your Honor. [00:14:59] Speaker 05: I mean, it's just because of the nature of the examination order and the misconduct finding that it makes it so different from McBride that I don't know how you could separate them out, which I think bears on why neither of them is moot as opposed to why both of them are moot. [00:15:15] Speaker 04: So you would not be making any different argument with respect to one or the other? [00:15:22] Speaker 05: You mean an underlying argument as to why one was legal or one was not legal? [00:15:27] Speaker 04: Well, were there your challenges? [00:15:28] Speaker 04: Yes, was there any distinct challenge to the one that does not apply to the other? [00:15:34] Speaker 05: I think the review committee acknowledged that [00:15:45] Speaker 05: to order someone to undergo a psychiatric, a federal judge to undergo a psychiatric examination was a question of first impression. [00:15:52] Speaker 05: And to find that that constituted misconduct, I mean, to me, I almost compare it to a, was this a good faith objection sort of analysis so that one could make that sort of argument about the misconduct finding that you wouldn't make about the actual order to undergo the psychiatric examination. [00:16:14] Speaker 03: But is that an argument that you've been making? [00:16:17] Speaker 03: Is that in the complaint? [00:16:19] Speaker 04: I think it is. [00:16:24] Speaker 04: I believe it is. [00:16:26] Speaker 04: OK. [00:16:29] Speaker 03: But you can't point to a particular part right now. [00:16:31] Speaker 03: I mean, you can look at it for purpose of rebuttal. [00:16:33] Speaker 03: That's fine. [00:16:34] Speaker 05: Yeah, I don't know. [00:16:36] Speaker 05: I mean, I'll look at it for purposes of rebuttal. [00:16:40] Speaker 03: OK, that's fine. [00:16:41] Speaker 03: Let me make sure my colleagues don't have additional questions for you at this time. [00:16:45] Speaker 03: Okay, thank you, Mr. Orfanidis. [00:16:46] Speaker 03: We'll hear from Mr. Soder. [00:16:49] Speaker 00: Thank you very much, Your Honor. [00:16:50] Speaker 00: May it please the court, Kevin Soder from the Department of Justice for the Judicial Council and the Review Committee. [00:16:56] Speaker 00: I'd like to focus today on why this case is very different from any of the cases in which a claim of reputational harm has saved the case from mootness. [00:17:05] Speaker 00: As the recent colloquy was pointing out, there is no meaningful difference here between the challenge to [00:17:11] Speaker 00: what the plaintiff tries to pull out as the misconduct finding and the challenge to this very clearly moot examination order that is no longer in effect, hasn't been in effect for more than two years now, and does not require any future action or have any reasonable expectation of future action from the plaintiff. [00:17:30] Speaker 00: And there has never been any case in which a court has allowed an action to proceed where the request would be for a declaratory judgment [00:17:39] Speaker 00: opining directly on the merits of a plainly moot issue based solely on an allegation of reputational harm. [00:17:47] Speaker 00: There are a few features. [00:17:50] Speaker 03: The reputational harm, you're not saying that the reputational harm isn't real, are you? [00:17:55] Speaker 03: Because it does seem like a real thing for a judge to be found to have committed misconduct. [00:18:02] Speaker 00: Correct, Your Honor. [00:18:04] Speaker 00: We are not at all saying that the reputational harm is not real, but that it is not [00:18:07] Speaker 00: sufficient to meet the requirements of Article 3 for several reasons. [00:18:12] Speaker 02: One of which is that if you look at- I'm sorry, before you go on, you just also said there's no case that's similar. [00:18:18] Speaker 02: Is that because you're reading Fortich to be concerning only bill of attainder as opposed to declaratory judgment? [00:18:28] Speaker 02: Are you making some sort of remedy distinction? [00:18:30] Speaker 00: I don't think that's the most important distinction from Fortich, Your Honor. [00:18:33] Speaker 00: I think the overall theme of these cases is that context matters a huge amount. [00:18:38] Speaker 00: And the context for the challenge in this case includes something that's just absent from any other case with a live injury, which is the withdrawal of the order that allegedly causes the reputational injury. [00:18:48] Speaker 00: The claim of reputational harm here is a cloud over the judge's fitness to serve in office that came from that underlying examination order that he's arguing is inextricably intertwined with this misconduct finding. [00:19:03] Speaker 00: And any reputational harm that flows from that [00:19:07] Speaker 00: was meaningfully vitiated when the Judicial Council publicly announced in 2018 and 2019, and its orders on those issues are at JA 104 and 106, that the examination order was no longer necessary going forward based on factual changes. [00:19:24] Speaker 03: That makes it sound like that there's no way in which the judge would be better off if there were a subsequent statement that says something like, look, we've already decided that the examination requirement is no longer in effect. [00:19:37] Speaker 03: And because it's no longer in effect, there's no misconduct based on something that's no longer in effect. [00:19:43] Speaker 03: So that's not any longer on the books either. [00:19:47] Speaker 00: So of course there are ways in which any injury that had been originally lingering might have been vitiated further. [00:19:55] Speaker 00: But our point here is that there's just not enough left at this point to this case to overcome the rule that the lingering effect of an otherwise moot action [00:20:05] Speaker 00: doesn't save a case from mootness. [00:20:07] Speaker 03: So you think there is, your argument is not that it was necessarily the case that when the examination requirement was deemed to be no longer in effect, that the spillover harm from the misconduct just disappeared. [00:20:22] Speaker 03: Your argument is that there may still be some spillover harm from the misconduct. [00:20:26] Speaker 03: It's just not enough. [00:20:29] Speaker 00: I think, yes, all we need, of course, is that there is not enough to support Article 3 jurisdiction. [00:20:34] Speaker 00: The point is, of course, there can be challenges in drawing this line. [00:20:40] Speaker 00: And I think this court's cases illustrate that some cases will fall on one side of the line and some will fall on the other. [00:20:46] Speaker 00: And the reason is that in the course of issuing orders, making decisions, governments and private parties all the time are going to make findings. [00:20:54] Speaker 00: They're going to describe things in the course of making an order or a decision. [00:20:59] Speaker 00: And those descriptions and those things that could just be couched as factual findings [00:21:03] Speaker 00: can't form the basis for an independent challenge once the decision or the order that's made is later withdrawn and mooted. [00:21:11] Speaker 03: Can I ask you this hypothetical? [00:21:12] Speaker 03: So suppose that what happened is there's an examination requirement that's imposed and the judge declines to abide by it. [00:21:18] Speaker 03: And then what the council says is we've imposed an examination requirement that we think is on perfectly sound footing. [00:21:26] Speaker 03: the judge has declined to comply with it. [00:21:29] Speaker 03: It's not necessarily enough to deem him to have engaged in misconduct that he declined to comply with it. [00:21:34] Speaker 03: But we think that his declining to comply with it was in especially bad faith. [00:21:40] Speaker 03: given the significance of the inquiry that we're undertaking. [00:21:44] Speaker 03: And because of that, we're finding that he engaged in misconduct by declining to abide by the examination requirement. [00:21:51] Speaker 03: And then later on, the same thing happens here. [00:21:53] Speaker 03: The examination requirement is eliminated going forward. [00:21:57] Speaker 03: Would you still say that the misconduct determination [00:22:02] Speaker 03: is necessarily an adjunct to the examination requirement that's now moot, and therefore that goes away too, even though here the rationale would have been not every failure to abide by an examination requirement results in misconduct, but this one does because of the nature of the proceeding. [00:22:18] Speaker 00: I think that probably still wouldn't cross the line. [00:22:20] Speaker 00: Of course, there are, for the reasons that Your Honor states, there are reasons why you could think maybe that comes a little bit closer to the line in this case. [00:22:28] Speaker 00: But the important features would remain similar, which is that there is still something later [00:22:32] Speaker 00: that vitiates the reputational effect from the challenged order. [00:22:35] Speaker 00: There is still another feature of this is that the claim of reputational harm has to be traceable to the specific order that's actually being challenged. [00:22:45] Speaker 00: And here there were these proceedings that were ongoing about misconduct related to behavior toward a magistrate judge and reprimand for that, none of which are challenged in this case and all of which will remain a matter of public record, regardless of success in this case. [00:22:58] Speaker 04: Let me ask you then, are you essentially arguing now that this case is covered by the incremental harm analysis in McBride? [00:23:13] Speaker 00: I believe it's covered by several pieces of McBride at once. [00:23:16] Speaker 00: Of course, the most direct application is to compare it to the expired sanctions that didn't save that case. [00:23:21] Speaker 00: And it's important to remember the challenges in McBride were two specific sanctions that were imposed against the judge. [00:23:28] Speaker 00: Each of those would have been tied in some way to something like a set of findings, like the 159 page report that was found to be stigmatizing enough to confer ongoing jurisdiction for the reprimand, which is a specific sanction available under the act. [00:23:45] Speaker 00: But unlike Judge McBride, Judge Adams was not issued a specific sanction for refusing to comply with the evaluation. [00:23:55] Speaker 00: These were ongoing proceedings. [00:23:56] Speaker 00: was an ongoing investigation into whether a mental health disability was present. [00:24:03] Speaker 02: You seem to be resisting the conclusion that we have more than just a statement that he didn't comply with the examination order. [00:24:14] Speaker 02: We have a separate finding by the council that not doing that constitutes professional misconduct. [00:24:24] Speaker 02: So it's not just [00:24:26] Speaker 02: The report says he didn't do it. [00:24:28] Speaker 02: And then we go on to say, so we're ordering him to do an examination. [00:24:33] Speaker 02: In that circumstance, I understand there are lots of findings that lead up to what you seem to think is the main show, which is the examination order. [00:24:42] Speaker 02: But along the way here, they also made a separate, it's seemingly inherently stigmatizing finding about what it meant that he didn't [00:24:54] Speaker 02: comply with the examination order. [00:24:56] Speaker 02: And I don't understand why that doesn't give him a basis when they don't retract that in addition to the examination order, why that isn't enough in light of McBride and Fortage and Sullivan and other cases in which we have considered that to be sufficient. [00:25:15] Speaker 00: So two responses to that. [00:25:17] Speaker 00: One on the facts of this and how that misconduct finding fits in. [00:25:21] Speaker 00: In the context of this ongoing investigation, [00:25:24] Speaker 00: When you look at when the misconduct finding was made, if you look a couple of pages past that, I think it's at the very end of the Judicial Council's report on page JA60, you can see that it was being considered misconduct in order to support possible future actions. [00:25:42] Speaker 00: There was no sanction connected to this misconduct finding, like the sanction of publicly reprimanding the judge for the behavior toward the magistrate judge. [00:25:51] Speaker 00: And similarly, if you look at what the review committee said at the end of its order, I think this is at J.A., believe it's J.A. [00:25:59] Speaker 00: 99, they're also talking about possible future actions for the misconduct that had been found. [00:26:08] Speaker 00: So this is very unlike the public reprimand in McBride that could be challenged on its own and much [00:26:14] Speaker 00: more like something that has, we were talking about the order that's expired and a potential challenge to that. [00:26:19] Speaker 02: I'm sorry, why isn't that just Sullivan? [00:26:21] Speaker 02: Isn't Sullivan the one where the attorney was bound to have committed misconduct of some sort, but they didn't impose a sanction? [00:26:27] Speaker 02: So fine, they didn't impose a sanction. [00:26:29] Speaker 02: Isn't that exactly what happened in that case? [00:26:32] Speaker 00: In that case though, the finding was reached at the culmination of the proceedings. [00:26:35] Speaker 00: There was no ongoing investigation. [00:26:37] Speaker 00: There was a determination that the attorney had committed misconduct [00:26:42] Speaker 00: that was subject to direct review on appeal. [00:26:46] Speaker 00: And there wasn't anything later that happened that vitiated any reputational harm that flowed from that. [00:26:52] Speaker 00: I see my time has expired. [00:26:53] Speaker 00: May I continue to answer? [00:26:55] Speaker 00: Yeah. [00:26:56] Speaker 00: So I think I also mentioned there was the legal point also in reconciling these cases. [00:27:02] Speaker 00: The important thing to keep in mind is context matters a huge amount in how these cases come out. [00:27:08] Speaker 00: And the cases that stand for the proposition that you actually have to prove up [00:27:12] Speaker 00: your claim of reputational harm are perhaps best illustrated by this court's decision in Gould, in which former detainees from Guantanamo claimed that their label of being enemy combatants continued to cause ongoing stigma, ongoing harm. [00:27:28] Speaker 00: And this court readily dispensed with the argument that stigma alone could be enough. [00:27:32] Speaker 02: But isn't Gould really more about sort of the habeas analysis and lateral consequences? [00:27:38] Speaker 02: It seemed to be a little bit of an outlier given [00:27:41] Speaker 02: the other kinds of reputational harm cases that we're talking about here? [00:27:47] Speaker 00: I don't think it's an outlier at all. [00:27:48] Speaker 00: It relies on core principles of Article III jurisdiction. [00:27:52] Speaker 00: It relies on Spencer versus Kemna, which went through a detailed analysis of why presuming collateral consequences from anything, including potentially a criminal conviction, as discussed in footnote eight of Spencer, isn't enough to confer ongoing jurisdiction. [00:28:09] Speaker 04: And I'd like to emphasize that when pressed... Wasn't it terribly relevant that the complainant was no longer subject to the US jurisdiction? [00:28:17] Speaker 00: I didn't read that to be a dispositive piece of the court's analysis. [00:28:22] Speaker 00: I read the analysis to be discussing that the case had become moot by the release from custody, just like this case has become moot by the ending of the examination order. [00:28:31] Speaker 00: And when there's the lingering effect of an otherwise moot action, the case doesn't survive. [00:28:35] Speaker 00: That rule was also applied in this court's case at Anderson from 2015. [00:28:40] Speaker 00: Just all of these numerous cases in which that rule controls, including, of course, the moot portion of McBride where we're talking about you have these different sanctions, all of which would have been premised on some findings, but the ones that had expired were moot. [00:28:54] Speaker 02: Can I ask you, it seems to me to matter and maybe it doesn't. [00:29:00] Speaker 02: This is where you come in to tell me I'm wrong. [00:29:03] Speaker 02: It seems to me to matter that in Anderson and potentially Gull, we're not talking about a public document that's on a website labeling these people as incapable of writing in, as a journalist incapable of writing with military combat people or Gull, he may have been labeled an enemy combatant, but who really knew that? [00:29:31] Speaker 02: Our current situation is a misconduct finding that even if it's a part of an investigation, even if it's in progress, it is publicly available on the court's website. [00:29:43] Speaker 02: And therefore, isn't it distinct from the kinds of acts that we say were mooted by the release of the prisoner or by the change in the fundamental nature of the embed program? [00:29:59] Speaker 00: I don't think it's distinct for those reasons. [00:30:02] Speaker 00: I don't think there was any suggestion in those cases that the claim of reputational harm failed for not being publicly disseminated widely enough. [00:30:10] Speaker 00: But even moving past that and looking at, for example, the moot portion of McBride, I think the takeaway from McBride is if Judge McBride had only challenged his one-year suspension from being allowed to sit on any cases, his challenge would have been completely moot. [00:30:26] Speaker 00: There would have been no basis to reach any of his challenges. [00:30:28] Speaker 00: And that's why footnote five of the opinion doesn't reach the merits of his claim that that's unconstitutional. [00:30:33] Speaker 00: And so, but similarly if he had, if he had been sanctioned in that way, the sanction would have had to be supported by findings that under the statute would presumptively have to be public. [00:30:46] Speaker 00: That's the statutes currently at 28 USC 360 B says that when you have one of these sanctions, including a suspension from cases like was done in McBride. [00:30:57] Speaker 00: you have to explain the basis for that and make that publicly available absence good cause otherwise. [00:31:01] Speaker 03: So on the facts on McBride, for example, you've got the one year period where the judge was not supposed to take on new cases. [00:31:07] Speaker 03: Suppose that what happens is then the judge decides to undertake some actions that attempt to take on new cases and sends out some emails to the clerk's office and says, you know, I know there's an order in effect, but that don't pay any attention to that. [00:31:21] Speaker 03: I'm in the courtroom. [00:31:22] Speaker 03: I'm ready to hear cases. [00:31:22] Speaker 03: Please start assigning me cases. [00:31:24] Speaker 03: And then that becomes known. [00:31:26] Speaker 03: And then there's a misconduct determination based on the idea that the judge is undertaking actions in breach of the requirement that the prohibition against taking on new cases. [00:31:36] Speaker 03: If the prohibition goes away, your argument would say that the misconduct, the actions that were undertaken in an effort to circumvent the imposition of the order that you're not taking on any new cases also goes away. [00:31:54] Speaker 00: That does sound relatively analogous. [00:31:56] Speaker 00: I would say that the context for these things always matters. [00:32:01] Speaker 00: So if there is nothing in the later proceedings that could be seen to vitiate the effect of the misconduct finding, you might draw a distinction based on the difference between the mere expiration of a sanction and the, sorry, the mere expiration of, I guess it would be the sanction in that case, and the withdrawal of one, which [00:32:21] Speaker 00: a point that I think this court's decision in Penthouse illustrates well that in that case, the government letters that were the claimed source of reputational injury were affirmatively withdrawn. [00:32:31] Speaker 00: And I think that's a better analog to what happened here than mere expiration of a sanction that has a time limit on it. [00:32:38] Speaker 00: When the Judicial Council publicly announced that there was no longer an ongoing concern that required an evaluation to take place. [00:32:47] Speaker 02: I don't understand why that distinction matters from the standpoint of mootness when you're talking about the ability of the person to challenge that separate finding. [00:33:03] Speaker 02: Why does it matter whether the event is a withdrawal or an expiration of the sanction? [00:33:15] Speaker 00: I think it goes largely to redressability, Your Honor. [00:33:18] Speaker 00: What we're talking about here at the end of the day is a declaratory judgment that would require opining on the merits of this moot issue. [00:33:25] Speaker 00: And the question is whether there would be any meaningful redress that could be provided by declaring that the misconduct finding and necessarily intertwined evaluation order were unlawfully issued. [00:33:37] Speaker 00: And when you have a situation where an order has already been withdrawn, the point that's made in Penthouse and that's quoted in Fortich is, [00:33:45] Speaker 00: you can ask, what more is there to gain by the order that's being sought? [00:33:50] Speaker 00: And when you look at that incremental effect of the order, particularly given the background here of the many things that will not be changed that could affect the judge's reputation, there just isn't enough left to this case. [00:34:02] Speaker 00: And I think another point that illustrates that well is when you consider the specific consequences that the plaintiff attempts to point to. [00:34:09] Speaker 00: And you look at, for example, the speculation about what's motivating the behavior of Sixth Circuit [00:34:15] Speaker 00: judges who are sitting on appeals and considering whether they meet the standards to remand to different district court judges. [00:34:21] Speaker 00: That level of speculation has just never supported a claim of ongoing harm. [00:34:26] Speaker 00: sufficient to save a case from illness. [00:34:29] Speaker 03: But it seems like, if I could just encapsulate your argument, several times you refer to vitiating the effect, which to me sounds like the effect is gone. [00:34:38] Speaker 03: But then other times you've talked about lingering effect, which to me makes it seem like there's still a lingering effect. [00:34:43] Speaker 03: And so the way that you could bring those together is to say, even if there is an incremental effect from the continued existence of the misconduct language, [00:34:52] Speaker 03: that's just not legally cognizable. [00:34:55] Speaker 03: But that's different from saying it actually vitiated the effect because what could you possibly be complaining about? [00:35:01] Speaker 03: Because the thing that the judge was alleged to have infringed is no longer in effect anyway. [00:35:09] Speaker 03: So as a practical matter, there's nothing to be complaining about. [00:35:12] Speaker 03: Those seem to be different. [00:35:16] Speaker 00: I view those as similar, but I think that the only conclusion the court needs to reach is that there is no longer enough effect [00:35:22] Speaker 00: so that meaningful redress could be available through the specific relief that's been requested, which is a declaratory judgment opining on the legality of the examination order. [00:35:33] Speaker 00: As the earlier colloquy was canvassing, there isn't anything that I can find, and certainly no argument I've seen made, that there is a distinction between a challenge to the misconduct finding and a challenge to the examination order. [00:35:47] Speaker 00: When you look at the counts of the proposed amended complaint at JA 124 to 126, [00:35:52] Speaker 00: nothing there about some sort of distinct legal claim that could be based on one without being based on the other. [00:35:58] Speaker 02: And at the end of the day- How is it then that Judge Adams gets to litigate his concern that what happened here was that he was being charged with contempt under circumstances in which he shouldn't have been? [00:36:16] Speaker 02: And I know that that means we have to assess the extent to which the [00:36:20] Speaker 02: original order was valid. [00:36:22] Speaker 02: That's always been his claim. [00:36:24] Speaker 02: It wasn't, but that's just because he says, I'm not in contempt because the original order wasn't valid, which he distinguishes in some sense from a full frontal challenge on the original order, which you can't do anymore because that's moot. [00:36:41] Speaker 02: You've now said the two are combined. [00:36:44] Speaker 02: He admits there's no daylight in terms of the actual litigating position, but there's still this concern [00:36:51] Speaker 02: that he wants to be able to litigate the contempt order. [00:36:56] Speaker 02: And I don't hear you giving him any opportunity to do that. [00:37:00] Speaker 02: He can only do that while the underlying thing is live. [00:37:02] Speaker 02: Is that what you're saying? [00:37:05] Speaker 00: That sounds like an encapsulation of it. [00:37:06] Speaker 00: Yes, I think, I mean, of course, just wanting to litigate something is not enough reason to get you into federal court. [00:37:12] Speaker 00: Psychic injury isn't enough. [00:37:13] Speaker 00: And as Steel Co. [00:37:15] Speaker 00: points out, every plaintiff who files a suit [00:37:18] Speaker 00: would desire a ruling on it. [00:37:20] Speaker 00: But that doesn't mean that there is enough for Article III jurisdiction. [00:37:24] Speaker 00: And here, there just isn't enough left to this case. [00:37:28] Speaker 00: And that's why the case is about lingering effects of an otherwise moot action control. [00:37:32] Speaker 00: It's like the lingering effects that were at issue in the moot portions of McBride. [00:37:37] Speaker 00: And it's like the lingering effects that were left in this court's other cases. [00:37:40] Speaker 00: We're left with a case where there was this challenge to an examination order that remains the focus of the challenge [00:37:47] Speaker 00: But all we're left with is the tail trying to wag the dog of this case. [00:37:52] Speaker 04: So I want to ask a question that addressed to Mr. Orphanades when he comes back, but it to you right now. [00:37:59] Speaker 04: If the case were to go to trial, what would you expect Judge Adams to present? [00:38:09] Speaker 04: What's the best he could present that would still be insufficient in your view for meaningful redress? [00:38:16] Speaker 00: So I'd like to clarify, this case should not go to trial. [00:38:21] Speaker 00: There were threshold issues that were raised aside from mootness that have not been resolved by the district court. [00:38:28] Speaker 00: But the only request I'm seeing in the proposed amended complaint, which was the specific proposal that was made to try to get around the mootness of this case, is for a declaratory judgment. [00:38:39] Speaker 00: And of course, the court would have ample discretion for the reasons that we discussed at the end of our brief [00:38:46] Speaker 00: deny that form of relief at the end of the day, even in the very unlikely event that this case were to survive the viable threshold defenses and were to prevail on the merits. [00:38:58] Speaker 04: Well, okay, the request would be for a declaratory judgment, but what would you say to the trial judge the plaintiff has to show and cannot show in your view? [00:39:08] Speaker 00: On the merits of that, we would say that the plaintiff has to show that [00:39:14] Speaker 00: his, the four challenges and his proposed amended complaint survive these threshold challenges and are correct interpretations of the law and the merits, which would include, so his claims are facial constitutional challenges under a void for vagueness doctrine. [00:39:30] Speaker 00: And he also has an ultra various challenge to the examination order and an as applied due process challenge to the process in which the proceedings. [00:39:40] Speaker 04: At some point we get through that conceivably, conceivably. [00:39:44] Speaker 04: to what facts would he have to, what facts would he have to prove up? [00:39:48] Speaker 04: Which he cannot do in your view. [00:39:53] Speaker 00: So I think that's, it's a, as far as the fact, I think, I mean, the only challenges that would even potentially get to the merits are these facial constitutional challenges for which I'm not sure the facts would matter very much. [00:40:09] Speaker 00: He'd be talking about, does the language of the statute give enough notice [00:40:14] Speaker 00: that the steps that were taken in this investigation were appropriate. [00:40:18] Speaker 00: And the reason why that challenge fails at the threshold on a 12b6 basis is that he's not talking about anything that governs conduct to which the void for vagueness doctrine even applies. [00:40:30] Speaker 00: And even if it did, the statute is not vague. [00:40:32] Speaker 02: I'm sorry to keep going on so long, Chief, but can I ask you about why it is that the council didn't just [00:40:43] Speaker 02: also rescind this aspect of their investigation. [00:40:47] Speaker 02: They got rid of the examination order, but it seems very almost calculated in a way to remain standing behind and to leave in place this finding that he was held in contempt. [00:41:03] Speaker 02: And in my own mind, as I went through everything, I wondered whether that standing alone was sort of doing work [00:41:12] Speaker 02: from the standpoint of the council that we want people to know that when we order them to do things, they have to do it. [00:41:21] Speaker 02: And if not, we're going to hold them in professional misconduct or say that that's the case, and it's going to be on the website so that even now, though we say Judge Adams doesn't have to do this examination anymore, there's still a benefit to us as the council for leaving that in place. [00:41:39] Speaker 02: Am I totally off base? [00:41:42] Speaker 02: Was this just a clerical error that they meant to get rid of the whole thing and they left that in? [00:41:47] Speaker 00: So I can't speculate about what was motivating them. [00:41:49] Speaker 00: I don't think there's anything in the record about that. [00:41:52] Speaker 00: But I also don't believe that there's anything reflecting that Judge Adams ever asked for this misconduct finding to be scrubbed from the books in some way. [00:42:01] Speaker 00: That's a request that he made in this litigation after the [00:42:06] Speaker 00: Only order with any operative effect was declared to no longer be in effect. [00:42:12] Speaker 00: So I think that all just what we were left with at this point in the case is we have this misconduct finding that The plaintiff is trying to home in on to say it saves the case. [00:42:24] Speaker 00: But it's just not enough. [00:42:27] Speaker 00: And it's it was this interim step as part of these ongoing proceedings about possible future actions, including [00:42:33] Speaker 00: potential future concrete sanctions like the concrete sanction of a reprimand that was at issue in McBride or the concrete sanction of case removals if the misconduct were to continue. [00:42:43] Speaker 00: But at the time, there was just a specific finding that misconduct had occurred up to that point in the investigation to support an [00:42:51] Speaker 00: potential future actions in the ongoing investigation that never came to pass. [00:42:54] Speaker 03: Of course, it'd be really easy to end the case by everybody's estimation if in response to the, I take your point that the issue may not have surfaced until the litigation was filed. [00:43:03] Speaker 03: I understand that point, but it would also be very easy to resolve the case if once the litigation is filed and everybody's on notice of what's at stake, then the council just issues a subsequent ruling that just says, oh, now I see what's going on. [00:43:14] Speaker 03: By the way, we're going to, [00:43:16] Speaker 03: rescind the misconduct portion of that, too, just to end any debate about it. [00:43:20] Speaker 03: And then the case would be over by everybody's estimation. [00:43:22] Speaker 03: That could happen, I suppose. [00:43:24] Speaker 00: So I agree. [00:43:25] Speaker 00: I think our point that would certainly make the mootness analysis even easier. [00:43:30] Speaker 00: But our point is that what happened is similar to that in enough relevant respects to cross the threshold from jurisdiction to no jurisdiction. [00:43:39] Speaker 03: Got it. [00:43:40] Speaker 03: Thank you. [00:43:41] Speaker 03: I'll make sure my colleagues don't have further questions for you. [00:43:44] Speaker 03: Thank you, Mr center Mr orphanages will give you two minutes for rebuttal. [00:43:50] Speaker 05: Thank you. [00:43:51] Speaker 05: From judge's perspective and this this arose at will call it the administrative level back when it was in still in front of the special committee and the judges council we did challenge the authority. [00:44:02] Speaker 05: to find him in misconduct for objecting and good faith to what was a question of first impression so this is not something new and for purposes of this litigation. [00:44:12] Speaker 05: This has been an issue all along. [00:44:16] Speaker 05: I was asked about where in the complaint is there this distinction. [00:44:20] Speaker 05: And I really think it's structural. [00:44:22] Speaker 05: We have three counts that really challenge the authority of a judicial counsel, a special committee, to conduct or to order a psychiatric examination. [00:44:33] Speaker 05: And then we have the due process challenge. [00:44:35] Speaker 05: And I think that goes more towards the examination order and the underlying reasons for the examination order. [00:44:41] Speaker 05: So it's a bit structurally in the complaint. [00:44:46] Speaker 05: You know, they still are there, they're distinct issues and yet they're interrelated issues and I don't know how else to explain it, other than the fact that there is a misconduct finding out there that has not gone away, we've objected to it. [00:44:56] Speaker 05: To we objected when they were contemplating holding him in misconduct for objecting in good faith and we've, and we're now litigating it, you know, [00:45:07] Speaker 05: I don't, counsel said there needs to be a line. [00:45:10] Speaker 05: Well, you know, Sullivan, there was no sanction at all. [00:45:13] Speaker 05: So the line clearly is, is there a misconduct finding? [00:45:16] Speaker 05: Traceability, you know, the Fordage case. [00:45:19] Speaker 05: I think anybody who was in DC in the, I don't know if it was the eighties or the nineties, but remembers, you know, all of the publicity about that case and, you know, Congress piled on and yet the court found it could provide meaningful relief to Dr. Fordage if, [00:45:35] Speaker 05: that finding was declared unlawful. [00:45:39] Speaker 04: As you just said, though, had been maligned and it was the subject of an extensive press conference, a press coverage. [00:45:47] Speaker 04: I can see that. [00:45:48] Speaker 04: But here it's quite a different situation, much more inside baseball. [00:45:54] Speaker 04: So just bear with me and assume that you can get through all of the threshold issues raised by the government. [00:46:01] Speaker 04: Are there any facts you're going to proffer? [00:46:04] Speaker 05: Oh, I think if we were to go to trial, we would show the press coverage of the issue and the negative press coverage that Judge Adams got while this was underway, when he was found to have committed misconduct and subject to the examination order. [00:46:23] Speaker 04: He would have to have some contemporary consequence to prove up, not something that was published simply because it was published five years ago. [00:46:33] Speaker 05: Well, that certainly is analogous to the forage case where there was publicity as well. [00:46:39] Speaker 05: But the question is, is meaningful relief, is meaningful relief available by finding that there was no authority to order him to find him in misconduct, to find he had committed misconduct by objecting in good faith. [00:46:55] Speaker 02: Can I ask you another version of the sort of incremental harm question, which is my understanding was that [00:47:02] Speaker 02: Judge Adams did not challenge the misconduct finding that arose from his having issued the order to show cause in the first place that there was a finding I thought about that that wasn't challenged. [00:47:16] Speaker 02: So there's already in the record and in the public view and in newspapers, presumably some press coverage of his having done that to begin with the issuing the order and [00:47:31] Speaker 02: having been found to be in misconduct, giving rise to the need for an examination order. [00:47:38] Speaker 02: So how much more reputational harm is there from this essentially second misconduct filing that arises from his refusal to submit to the examination [00:47:54] Speaker 05: He absolutely challenged it before the judicial council and the review committee. [00:47:58] Speaker 05: We chose not to challenge it in the litigation. [00:48:02] Speaker 05: But at the same time, I don't see how that's any different from the misconduct findings in McBride or in Sullivan or in Fortich. [00:48:11] Speaker 05: There was negative publicity about the underlying, each of those underlying cases. [00:48:19] Speaker 05: But still, the court found that they could afford meaningful relief, even if it's just a small, narrow component of it, that that was sufficient to keep the case from being moved. [00:48:32] Speaker 05: And we don't see that any different here. [00:48:34] Speaker 05: I mean, if the court were ultimately to find that there was no authority to order a judgment bride [00:48:44] Speaker 05: to undergo a psychiatric examination such that he could not, his objection to undergoing that was not in bad faith, not misconduct, that would provide meaningful relief. [00:48:58] Speaker 05: The court would be saying that he did not commit conduct prejudicial to the expeditious and effective administration of the business of the courts. [00:49:05] Speaker 05: That would be meaningful relief to Judge Adams. [00:49:09] Speaker 05: And I think that's supported by McBride, Sullivan, Fortich, [00:49:14] Speaker 03: Okay. [00:49:15] Speaker 03: Thank you, counsel. [00:49:16] Speaker 03: Let me make sure my colleagues don't have additional questions for you. [00:49:19] Speaker 03: Thank you, counsel. [00:49:20] Speaker 03: Thank you to both counsel. [00:49:21] Speaker 03: We'll take this case under submission.